Flournoy & Epping v. Wooten

Blandeord, Justice. These two cases were submitted and argued together. In the first case the question .involved is whether B. T. Hatcher, who was offered.as a witness ir> behalf of Flournoy & Epping, was competent to testify as to a contract made between himself, as one of the firm of Flournoy & Hatcher, with C. B. Taliaferro, the said Taliaferro having died since the contract was made, in order to show that after the dissolution of the firm of Flournoy & Hatcher, that Taliaferro continued business with the firm of Flournoy & Epping on the same terms which he liad done with Flournoy & Hatcher. The court upon the trial admitted -the witness to testify, and after verdict found, Wooten, -executor, moved for a new trial, upon the ground of error in admitting Hatcher to testify, and upon other grounds :in said motion contained. The court granted the motion for new trial upon the ground that he erred in admitting Hatcher to testify, and refused the motion upon the other grounds therein. Flournoy & Epping oxcepted to the grant of a new trial, and assign this ruling as error. Wooten, executor, excepted to the refusal to grant the new trial upon the other grounds taken in the motion. [173] 1. The first question presented, is, was Hatcher a competent witness ? The record shows that he was not in any, wise interested in the event of the suit before or after the commencement of the same. The contract made between himself and Taliaferro, the deceased person, was made before any transactions had taken place between himself and Flournoy & Epping; and the testimony of Hatcher was merely intended to throw light on the subsequent dealings between Taliaferro and Flournoy & Epping. Hatcher was a competent witness at common law, and as the law stood before the passage of evidence act of 1866, Code of Georgia, §3854; and if he is incompetent, it must be by reason of the exceptions or some one of them to that act. A witness who is not offered to testify in his own favor; who is not .a party to the record, nor ought to have been a party to the record, is competent, even though the other party to the contract or cause of action in issue or on trial may be dead. See 3 Ga., 520; 45 Ib., 25, 147; 50 Ib., 205; 51 Ib., 625; 55 Ib., 98; 62 Ib., 639; 65 76., 132; Ib., 145; 67 Ib., 247; 69 Ib., 805. An agent who makes a contract for his principal is a competent witness, although the other party to the con. tract is dead, because not testifying in his own favor. 51 Ga., 625; 55 Ib., 98; 62 Ib., 639; 64 Ib., 237; 65 Ib., 132. A witness who is interested as a party, or who is interested in the event of the suit, is incompetent to testify, where the opposite party to the. contract or cause of action in issue or on trial is dead. 37 Ga., 118; 45 Ib., 511; 36 Ib., 520, 565; 40 Ib., 673; 48 Ib., 142 ; 53 Ib., 9; 54 Ib., 115, 119, 174; 55 Ib., 187; 58 Ib., 86; 59 Ib., 180, 343; 52 Ib., 640; 67 Ib., 675, 249; 66 Ib., 139 ; 64 Ib., 595; 63 Ib., 86 ; 62 Ib , 639; 61 Ib., 428; 60 Ib., 583. One who is a party to the record when offered to testify [174] in his own favor, the other party being dead, is incompetent. 37 Ga., 118 ; 45 Ib., 511; 58 Ib., 288; 56 Ib., 474; 63 Ib., 288, 479 ; 65 Ib., 407; 67 Ib., 248 (4 a). A person who ought to be a party is incompetent to testify where the other party to the contract, etc., is dead. Oatis vs. Harrison et al., executors, 60 Ga., 535. It will be seen by a careful consideration of these cases, and it is believed that they embrace all the cases decided by this court on this subject, that this court has never decided that a person who .is competent at common law, or who was competent to testify as a witness at the time of the passage of the evidence act of 1866, as embraced in section 3854 of the Code, was rendered incompetent by the exceptions to said act, except in cases of corporations, where a corporation seeks to prove some matter by its agents, the other party being dead, and the reason for this ruling being obvious; as the corporation only speaks through its agents, it would be the corporation testifying itself. The other party being dead, the agent of the corporation being the corporation itself, would fall within the exception to the act of 1866. The act of 1866, §3854, was not intended to exclude any one from testifying who was competent as a witness by the law as it stood at the time of its passage, but did intend to make all persons competent as witnesses except those who fell within the exceptions to the act, and such has been the uniform ruling of this court, as manifested by the decisions above referred to. Hatcher was a competent witness under the law as it stood at the passage of the act of 1866 ; he was not rendered incompetent by any exceptions thereto; hence the court erred in granting the new trial upon the ground that he committed error in allowing Hatcher to testify. 2. Wooten insists that the court committed error in not granting the new trial upon all the grounds contained in the motion. The first ground insisted on is that the court erred in not sustaining the demurrer and striking the plea of set off filed by defendants Flournoy & Epping. A [175] reference to the plea will show that the court committed no error in overruling the demurrer thereto. 3. The next ground insisted on is that all of the defendants’ account was barred by the statute of limitation, except that portion contracted within four years before the death of C. B. Taliaferro, plaintiff’s intestate. The account commenced in 1876 and ran regularly on to the year 1883; credits were given Taliaferro, and the balance charged up to the next year’s account. There was no evidence of a settlement between these parties at any time from the commencement of the account until the death of O. B. Taliaferro. An account, such as this, where there was no settlement between the parties, and the same runs from year to year, the statute of limitations will commence to run duly from the last charge or item of the account; it was a mutual account, the warehouse-men keeping both debit and credit side of the account, and the court was right in holding that the account of defendants was not barred by the statute of limitations. 4. Another ground in the motion for new trial is, that as the account was charged on the books of Elournoy & Epping to 0. F. Taliaferro and not to 0. B. Taliaferro, that the parol promise of 0. B. Taliaferro to pay the debt of 0. F. Taliaferro was within the statute of frauds. The court left it to the jury to find from the evidence whether the credit was given to C. F. Taliaferro or to 0. B. Taliaferro, and whether the account was charged to C. F. Taliaferro for the convenience of 0. B. Taliaferro. This was proper, and the jury having found for Flournoy & Epping on the issue thus left to them, the court did not err in refusing the new trial on this ground. There is no error in refusing the new trial on the grounds mentioned in the motion, and the judgment in this case is affirmed; and in the case of Flournoy & Epping, plaintiffs in error, vs. M. 0. Wooten, executor of 0. B. Taliaferro, deceased, is reversed, upon the ground the court erred in granting the new trial. Judgment reversed in first case and affirmed in second.